Sumpter, R (on the application of) v Secretary of State for Works and Pensions

This appeal concerned a judicial review challenge to the decision-making and consultation process adopted by the Secretary of State in replacing Disability Living Allowance with Personal Independence Payment, in particular the adoption of a 20 metre walking-distance threshold in Activity 12 ("Moving around") in Part 3 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013. The appellant contended the consultation was unfair because consultees had not had a proper opportunity to comment on the emergence of the 20 metre threshold (contrasting with an understood 50 metre benchmark under DLA) and that consultees lacked sufficient information about the likely impact on physically disabled claimants.

The Court of Appeal upheld Hickinbottom J's factual findings that earlier consultation materials were unclear and that many consultees reasonably understood a 50 metre threshold to be intended, but concluded that, viewed as a whole, the consultation process was fair and lawful. The court accepted that the Secretary of State conducted a further 2013 consultation with an open mind, considered responses conscientiously (including detailed advice and impact material) and reasonably decided not to amend the regulations. The appellant's reliance on Medway was considered but the court distinguished that authority on the facts. The equality duty point was noted but not pursued on appeal.

Background and parties. The appellant, Mr Steven Sumpter, a long-standing recipient of Disability Living Allowance (DLA) with middle rate care and higher rate mobility (unable to walk more than 50 metres), challenged the lawfulness of the Social Security (Personal Independence Payment) Regulations 2013 and decisions of the Secretary of State. The respondent was the Secretary of State for Work and Pensions. Hickinbottom J dismissed the claim at first instance ([2014] EWHC 2434 (Admin)). Permission to appeal was granted and the Court of Appeal (McCombe LJ, Patten LJ, Gloster LJ) heard the appeal.

Nature of the application/relief sought.

• The amended claim sought: a declaration that the PIP Regulations 2013 were unlawful; quashing of the Secretary of State's decision of 21 October 2013 refusing to amend descriptors and points for Activity 12 in Part 3 of Schedule 1; an order requiring a lawful consultation and a further decision; and (initially) an injunction preventing invitations to claim PIP under transitional provisions (the injunction was not pursued on appeal though counsel indicated it might in principle still be sought).

Procedural history. The claim for judicial review was issued 28 March 2013; permission to apply was given by Kenneth Parker J on 2 May 2013. Hickinbottom J dismissed the claim on 22 July 2014. Permission to appeal was granted by Vos LJ on 12 January 2015. This judgment is the Court of Appeal determination dated 15 October 2015 ([2015] EWCA Civ 1033).

Issues framed by the court.

• Whether the consultation process leading to the PIP descriptors (and in particular the 20 metre threshold in Activity 12) was so unfair or inadequate as to be unlawful;
• Whether consultees were provided with sufficient information to respond intelligently, particularly about the impact on physically disabled claimants and any re-allocation of resources between physical and non-physical impairments;
• Whether the Secretary of State had an open mind in the 2013 consultation and conscientiously considered responses; and
• (Raised but not pursued on appeal) alleged failure to comply with the public sector equality duty under section 149 Equality Act 2010.

Court's reasoning and decision. The court accepted Hickinbottom J's findings that the 2012 consultation material was unclear and that many consultees reasonably construed earlier drafting as incorporating a 50 metre threshold. However, the court emphasised that the fairness inquiry must look at the consultation process as a whole. The respondent carried out a further focused consultation in 2013, explicitly addressing the Moving around activity. The court accepted unchallenged evidence (notably Dr Bolton's) that ministers and officials approached the 2013 consultation with an open mind, considered a range of options (including potential knock-on changes to other activities or points thresholds), and conscientiously examined responses and impact material before deciding not to amend the Regulations. The court distinguished Medway on its facts and concluded that the appellant had a real opportunity in 2013 to make representations. On the adequacy of information the court found the material (including projected caseload and impact tables) gave sufficient information in general terms to enable consultees to respond meaningfully. The judge's conclusion that the overall consultation process was not unfair was therefore upheld and the appeal dismissed.

Appeal dismissed. The Court of Appeal agreed with Hickinbottom J that, while earlier consultation documents were unclear and many consultees reasonably believed a 50 metre threshold was intended, the consultation process taken as a whole was fair. The Secretary of State conducted a further 2013 consultation with an open mind, considered responses and impact material conscientiously, and was entitled to decide not to amend the Moving around descriptors in Part 3 of Schedule 1 to the PIP Regulations. Medway was distinguished on the facts and the equality duty challenge was not pursued on appeal.

First instance: Administrative Court (Queen's Bench Division), Hickinbottom J, dismissed the judicial review claim [2014] EWHC 2434 (Admin). Permission to appeal granted (Vos LJ, 12 January 2015). Appeal determined in the Court of Appeal, judgment given 15 October 2015, neutral citation [2015] EWCA Civ 1033.